Feldman, S M --- "The Transformation of an Academic Discipline: Law Professors in the Past and Future (or Toy Story Too)" [2006] LegEdDig 4; (2006) 14(3) Legal Education Digest 5
The Transformation of an Academic Discipline: Law Professors in the Past and Future (or Toy Story Too)
[2006] LegEdDig 4; (2006) 14(3) Legal Education Digest 5
54 J Leg Educ 4, 2004, pp 471–498
The academic discipline of law is undergoing a transformation that has law professors confronting a profound crisis of identity. To probe this identity crisis, one must first understand the historical development of the legal academic as a professional. To facilitate this examination of the past as well as the future of law faculty, the author begins with the movie Toy Story. One theme of the movie revolves around Buzz Lightyear’s confrontation with his own identity crisis. Law professors could learn much from Buzz and from how he handles his predicament. Law faculty today, as a collectivity, are facing an identity crisis much like Buzz Lightyear’s. As we begin the new millennium, we must confront a change in our self-understanding equal in severity to his change from space ranger to toy.
Law professors have perceived themselves first and foremost as lawyers. For the most part, during that time, we were lawyers teaching students about the law and about how to practise law. But we were not merely lawyers teaching apprentices. Today, law professors’ sense of themselves as primarily lawyers is crumbling. Our claimed connection to legal and judicial practices, our imagined participation in the legal system, increasingly appears spurious. Recent recommendations for the future direction of legal scholarship reflect our uncertainties.
The Langdellian conception of the science of law corresponded closely with the contemporary general view of science dominant within the universities. Regardless of the exact focus of the scholarship, the premises of Langdellian legal science were clear: by carefully parsing cases, discovering axiomatic principles, and applying those principles with rigorous deductive logic, the scholar could discern specific legal rules as well as the single correct result in any judicial dispute, whether hypothetical or real. In sum, Langdellian scholarship was distinctly normative: it was oriented toward the correct statement of substantive legal principles and rules so as to prescribe judicial outcomes.
The Langdellian law professors, finding themselves in effect standing between these opposed camps, tried to keep one foot on each side, though they leaned more toward the practitioners. They preferred the theoretical and selective type of law school, but they nonetheless primarily identified themselves as lawyers. So, with one foot on each side, law faculty struggled to mediate the tension between their dual positions as university professors and lawyers. And very quickly legal scholarship emerged as the most important means of mediation. Through their research and writing, Langdellian law professors attempted to establish their credentials as scholarly university professors. Despite the victory of the Langdellian model, neither the case method of teaching nor the Langdellian conception of legal science went unchallenged or unchanged.
After World War II, a new approach to legal scholarship and jurisprudence rose to dominance — ‘legal process’, which reasserted the importance of the study of pure law. The Langdellians had focused on the purity of the substantive law, the axiomatic principles and the logically deduced rules. The legal process thinkers instead sought purity through legal and democratic processes.
Significantly, the legal process thinkers believed they had managed to rescue the rule of law from the realist critique of Langdellian formalism. Judicial decision making, when done properly, was not arbitrary: it was a legitimate, rational, and objectively constrained governmental procedure. Yet simultaneously the legal process scholars brought a diluted form of realism into the mainstream of legal thinking. To a great degree, the legal process scholars were once again attempting to mediate the opposition between their dual roles as lawyers and university professors.
On the other hand, the Critical Legal Studies critique of the legal system generated hostility within large segments of the legal professoriate. When the students became attorneys, they would lack professionalism and competence. Having been nurtured on cynicism rather than ‘intellectual courage,’ they would practice ‘the skills of corruption.’ The message was clear. If critics did not sufficiently identify themselves with and as lawyers, they should not teach in American law schools. A law professor has a duty to maintain her own as well as her students’ professional faith in the law.
Today, a growing gulf stretches between legal scholarship and the practices of lawyers and judges, who regularly lament the inadequacy of legal scholarship and decry its uselessness for their work. The dissatisfaction of lawyers and judges with law schools and law faculty is, of course, not new. A basic tension between practitioners and academics emerged as early as the Landgellian period. But something is different today. On the practitioner’s side, many lawyers and judges may no longer sense a strong need for the cultural legitimation that the law schools once provided for the legal profession.
On the academic side, an increasing number of contemporary legal scholars no longer write with the explicit or even implicit hope of influencing the direction or reform of the law, either in courts or in legislatures. The current rage among law faculty to write interdisciplinary scholarship underscores the acute tension between academics and practitioners. Today interdisciplinary work is more pervasive than ever before. As we law professors gaze across this growing chasm between practitioners and the academy, we strangely and uncomfortably seem to resemble Buzz Lightyear.
Today, as law professors self-identify increasingly as university professors, their mediation of the dual roles of academician and practitioner is not as easily achieved for at least three reasons. First, some law professors no longer believe it is worthwhile or effective to write normative reform scholarship, which is typically patterned on legal and judicial practices. Second, many law faculties now lack the requisite faith in the objectivity and effectiveness of lawyers’ and judges’ traditional methods and norms. Law professors today cannot easily mediate the dual roles of practitioner and academic for a third reason: recent broad intellectual trends. Regardless, many scholars now question the worthiness of particular disciplinary methods and even the existence of objective knowledge and truths. Partly for this reason, then, interdisciplinary work is popular not just in law schools but in departments across the university.
No longer able so readily to mediate their dual roles, many law professors likely will be pushed ever further into their academic role. They will become increasingly aware of the distinction between, on the one hand, practitioners’ methods, litigation strategy, and judicial rhetoric and, on the other hand, scholarly methods. If law professors no longer base their writing predominantly on lawyers’ and judges’ methods, what will ground legal scholarship? One possible answer is interdisciplinarity.
While interdisciplinarity is popular in many university departments, it is especially robust in law schools. To a degree, law faculties merely are following the contemporary trend. Several factors seem to be converging to make the law schools a seething ferment of interdisciplinary activity, like some primordial sea spontaneously sprouting new forms of life. First, law professors have long been branded as generalists, and this image, insofar as it is true, would seem to reinforce any urge to draw from whatever sources or disciplines are useful for current scholarly needs. Second, some interdisciplinary legal scholars undoubtedly are driven by the romantic appeal of exploring uncharted intellectual waters, rebelliously pushing the edges of the envelope, and courageously treading on new ground. Third, and most important, the disintegrating consensus on the proper methods for legal scholarship is likely to nurture interdisciplinary approaches.
Much interdisciplinary legal scholarship produces insights that never would have been realised if scholars had remained confined within the narrow borders of well-defined disciplines. And yet much interdisciplinary experimentation is likely to be fruitless. Regardless of the prevalence and success of interdisciplinary legal scholarship, at least four forces seem likely to ensure the continued vitality of doctrinal law reform scholarship. First, law professors will continue to teach law students, most of whom expect to become attorneys. Second, most law faculty were trained in law schools to become lawyers. Some identified themselves so firmly as professional attorneys before they became academics that they will continue to identify themselves primarily as lawyers and only secondarily as university professors. Third, once academic disciplines become established, they tend to follow trajectories that isolate them increasingly from one another. Faculty in the sundry academic disciplines will generally be inclined to protect their professional status within the universities. Fourth, practitioners likely will continue to press law professors to teach and write in a more practical fashion.
What, then, might law professors learn from Buzz Lightyear about the future? In Toy Story, Buzz Lightyear did not freely choose either to be or to self-identify as a toy. If freedom of choice came into play at all, it was in Buzz’s changing attitude toward being a toy: from despair to enthusiasm. Law faculty faces a similar choice. We can brood about how we are trained only to be lawyers and thus are ill-equipped to be university professors, first and foremost. As interdisciplinary experts, we may flourish on our university campuses as few law professors have done before.